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Case 1:15-cv-01649 Document 2 Filed 10/07/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
DAVID T. HARDY
8987 E. Tanque Verde PMB 265
Tucson, AZ 85749

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
BUREAU OF ALCOHOL, TOBACCO,
)
FIREARMS AND EXPLOSIVES
)
99 New York Ave. NE
)
Washington, DC 20226
)
)
And
)
)
DEPARTMENT OF JUSTICE
)
950 Pennsylvania Avenue, NW
)
Washington, DC 20530-0001
)
)
And
)
)
DEPARTMENT OF JUSTICE
)
OFFICE OF INSPECTOR GENERAL
)
950 Pennsylvania Avenue, NW
)
Washington, DC 20530-0001
)
)
Defendants.
)
____________________________________)

COMPLAINT
(Freedom of Information
Act, 5 U.S.C. 552).

Comes now the Plaintiff, by and through undersigned counsel, and allege
as follows:
1.

This is an action under the Freedom of Information Act, 5 U.S.C.

552, for injunctive and other appropriate relief and seeking the disclosure

Case 1:15-cv-01649 Document 2 Filed 10/07/15 Page 2 of 6

and release of agency records improperly withheld from Plaintiff by


Defendants Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE),
the United States Department of Justice (DOJ), and the Department of
Justices Office of Inspector General (OIG).
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this matter pursuant to 28 U.S.C.

1331 and 5 U.S.C. 552(a)(4)(B).


3.

Venue lies in this district under 28 U.S.C. 1391(e).


PARTIES

4.

Plaintiff David T. Hardy is an attorney and internet blogger who

disseminates information relating to firearms law issues on the internet.


5.

Defendant BATFE is a component of the Department of Justice

and an agency within the meaning of 5 U.S.C. 552(f). Defendant BATFE


has possession, custody and control of records to which Plaintiff seeks access.
6.

Defendant DOJ is an agency within the meaning of 5 U.S.C.

552(f). Defendant DOJ has possession, custody and control of records to


which Plaintiff seeks access.
7.

Defendant OIG is a subdivision of the Department of Justice and

is an agency within the meaning of 5 U.S.C. 552(f). Defendant OIG has


possession, custody and control of records to which Plaintiff seeks access.

Case 1:15-cv-01649 Document 2 Filed 10/07/15 Page 3 of 6

STATEMENT OF FACTS
8.

On March 6, 2015 Plaintiff transmitted a Freedom of Information


Act (FOIA) request to Defendant BATFE. The tracking number is 7003
1010 0002 9053 2533. This FOIA is attached as Exhibit A. See Delivery
Confirmation as Exhibit B.
9.

The request was received by BATFE on March 16, 2015.

Pursuant to FOIA, 5 U.S.C. 552(a)(6)(A)(i), Defendant BATFE had 20


business days in which to produce the requested records. This period expired
on April 5, 2015.
10.

Plaintiff has received no response from Defendant BATFE.

11.

On March 6, 2015, Plaintiff transmitted a FOIA request to

Defendant OIG. The Tracking Number is 7003 1010 0002 9053 5138. This
FOIA is attached as Exhibit C. See Delivery Confirmation as Exhibit D.
12.

The request was received by OIG on March 16, 2015. Pursuant

to FOIA, 5 U.S.C. 552(a)(6)(A)(i), Defendant OIG had 20 business days in


which to produce the requested records. This period expired on April 5, 2015.
13.

Defendant OIG sent an acknowledgment letter, however has not

responded since then.


14.

Pursuant to 5 U.S.C. 552(a)(6)(A)(i), Defendants were

required to determine whether to comply with the request within twenty (20)

Case 1:15-cv-01649 Document 2 Filed 10/07/15 Page 4 of 6

working days of receipt and to notify Plaintiff immediately of their


determination, the reasons therefore, and the right to appeal any adverse
determination.
15.

As of the date of this Complaint, Defendants have failed to: (i)

determine whether to comply with the requests; (ii) notify Plaintiff of any such
determination or the reasons therefore; (iii) advise Plaintiff of the right to
appeal any adverse determination; or (iv) produce the requested records or
otherwise demonstrate that the requested records are exempt from production.
16.

Because Defendants have failed to comply with the time limit

set forth in 5 U.S.C. 552(a)(6)(A), Plaintiff is deemed to have exhausted any


and all administrative remedies pursuant to 5 U.S.C. 552(a)(6)(C).
COUNT I
(Violation of FOIA, 5 U.S.C. 552 Against DOJ and BATFE)
17.

Plaintiff realleges paragraphs 1 through 16 as if fully stated

herein.
18.

Defendants DOJ and BATFE are unlawfully withholding records

requested by Plaintiff pursuant to 5 U.S.C. 552.


19.

Plaintiff is being irreparably harmed by reason of Defendants

unlawful withholding of records responsive to Plaintiffs FOIA request, and


Plaintiff will continue to be irreparably harmed unless Defendants, DOJ and

Case 1:15-cv-01649 Document 2 Filed 10/07/15 Page 5 of 6

BATFE, are compelled to conform their conduct to the requirements of the


law.
COUNT II
(Violation of FOIA, 5 U.S.C. 552 Against OIG)
20.

Plaintiff realleges paragraphs 1 through 16 as if fully stated

herein.
21.

Defendant OIG is unlawfully withholding records requested by

Plaintiff pursuant to 5 U.S.C. 552.


22.

Plaintiff is being irreparably harmed by reason of Defendants

unlawful withholding of records responsive to Plaintiffs FOIA request, and


Plaintiff will continue to be irreparably harmed unless Defendant OIG is
compelled to conform its conduct to the requirements of the law.
WHEREFORE, Plaintiff respectfully requests that the Court:
(1) Order Defendants to conduct a search for any and all responsive
records to Plaintiffs FOIA requests and demonstrate that it employed search
methods reasonably likely to lead to the discovery of records responsive to
Plaintiffs FOIA requests;
(2) Order Defendants to produce, by a date certain, any and all non-exempt
records to Plaintiffs FOIA requests, and a Vaughn index of any responsive
records withheld under claim of exemption;

Case 1:15-cv-01649 Document 2 Filed 10/07/15 Page 6 of 6

(3) Enjoin Defendants from continuing to withhold any and all nonexempt records responsive to Plaintiffs FOIA requests;
(4) Grant Plaintiff an award of attorneys fees and other litigation costs
reasonably incurred in this action pursuant to 5 U.S.C. 552(a)(4)(E); and
(5) Grant Plaintiff such other relief as the Court deems just and proper.
Dated: October 7th, 2015
Respectfully Submitted,
DAVID T. HARDY
/s/ Stephen D. Stamboulieh
Stephen D. Stamboulieh
Stamboulieh Law, PLLC
P.O. Box 4008
Madison, MS 39130
(601) 852-3440
stephen@sdslaw.us
DC District Court Bar# MS0009
Counsel for Plaintiff

Case 1:15-cv-01649 Document 2-1 Filed 10/07/15 Page 1 of 2

David T. Hardy

Attorney at Law
8987 E. Tanque Verde
PMB 265
Tucson AZ 85749
(520) 749-0241
cell 490-9460
dthardy@mindspring.com

March 6, 2015

Stephanie Boucher, Division Chief
Disclosure Division
99 New York Avenue, NE, Room 1E-400
Washington, DC 20226

Dear Ms. Boucher,

This is a request pursuant to the Freedom of Information Act, 5 U.S.C.
552. I request copies of the following:
1.
All indexes or cross-references to opinions (sometimes referred
to as letter rulings or determination letters) issued by the Firearms Technical
Branch.
2.
Any opinions, rulings, policies or interpretations stating what
modifications can or cannot be made to receivers of National Firearms Act
firearms without making them into a new and unregistered firearm.
3.
Any rulings revoking or refusing to issue a Federal Firearms
License, or declining to take such action, entered in 2014 (fiscal or calendar,
at your option).
4.
Any rulings, opinions or policy defining a straw man sale
(e.g., is a purchase for another person a straw man sale only if the other
person is a forbidden purchaser, and how does a dealer distinguish making
such a sale from making a sale which will be used as a gift).
5.
Any rulings, instructions, or guidelines given to inspectors or
agents relating to how a Form 4473 should properly be completed.
6.
Any statements, surveys, or reports of interviews given by
BATFE employees, to the Justice Department Office of Inspector General in

Case 1:15-cv-01649 Document 2-1 Filed 10/07/15 Page 2 of 2

connection with IG Report No. I-2007-006 (The Bureau of Alcohol,


Tobacco, Firearms and Explosives National Firearms Registration and
Transfer Record, June 2007).
7.
The administrative record for (or if no such record exists, then any
briefing papers or documents compiled in relation to) any determinations
that forms of ammunition are or are not armor piercing as defined in 18
U.S.C. 921(a)(17(B) and have or do not have a sufficient sporting purpose
to qualify for exemption.
I am aware of such determinations for certain 7.62 mm ammunition
(determination dated February 2, 1994) and for 5.56 mm ammunition of the
SS109/M855 type, and for .30 caliber M2 ammunition, but there may be
additional determinations.
If any of these documents are in the agencys reading room, please
inform me and I will seek them there. I do not find them in the agencys
online reading room.
I am prepared to pay all fees. Please inform me if they are likely to
exceed $250.
Sincerely.

David T. Hardy

USPS.com - USPS Tracking

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Case 1:15-cv-01649 Document 2-2 Filed 10/07/15 Page 1 of 1


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Tracking Number: 70031010000290532533

Updated Delivery Day: Saturday, March 14, 2015

Product & Tracking Information


Postal Product:

Available Actions

Features:
Certified Mail

DATE & TIME

STATUS OF ITEM

LOCATION

March 16, 2015 , 4:30 am

Delivered

WASHINGTON, DC 20226

Your item was delivered at 4:30 am on March 16, 2015 in WASHINGTON, DC 20226.

March 13, 2015 , 11:22 am

Available for Pickup

WASHINGTON, DC 20226

March 13, 2015 , 11:06 am

Arrived at Unit

WASHINGTON, DC 20018

March 7, 2015 , 11:08 am

Departed USPS Facility

PHOENIX, AZ 85026

March 6, 2015 , 10:11 pm

Arrived at USPS Facility

PHOENIX, AZ 85026

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10/7/2015 6:47 PM

Case 1:15-cv-01649 Document 2-3 Filed 10/07/15 Page 1 of 1

David T. Hardy

Attorney at Law
8987 E. Tanque Verde
PMB 265
Tucson AZ 85749
(520) 749-0241
cell 490-9460
dthardy@mindspring.com

March 6, 2015


Deborah M. Waller
Government Information Specialist
Office of the Inspector General
Office of General Counsel
950 Pennsylvania Ave., N.W.
Room 4726
Washington, D.C. 20530

Dear Ms. Waller,

This is a request pursuant to the Freedom of Information Act, 5 U.S.C.
552. I request copies of the following:

Any statements, surveys, or reports of interviews given to the Justice
Department Office of Inspector General in connection with IG Report No. I2007-006 (The Bureau of Alcohol, Tobacco, Firearms and Explosives
National Firearms Registration and Transfer Record, June 2007).

I am prepared to pay all fees. Please inform me if they are likely to


exceed $200.
Sincerely.

David T. Hardy

USPS.com - USPS Tracking

1 of 2

https://tools.usps.com/go/TrackConfirmAction.action?tRef=fullpage&tL...

Case 1:15-cv-01649 Document 2-4 Filed 10/07/15 Page 1 of 1


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Tracking Number: 70031010000290535138

Updated Delivery Day: Saturday, March 14, 2015

Product & Tracking Information


Postal Product:

Available Actions

Features:
Certified Mail

DATE & TIME

STATUS OF ITEM

LOCATION

March 16, 2015 , 4:31 am

Delivered

WASHINGTON, DC 20530

Your item was delivered at 4:31 am on March 16, 2015 in WASHINGTON, DC 20530.

March 13, 2015 , 11:18 am

Available for Pickup

WASHINGTON, DC 20530

March 13, 2015 , 9:32 am

Arrived at Unit

WASHINGTON, DC 20018

March 7, 2015 , 11:08 am

Departed USPS Facility

PHOENIX, AZ 85026

March 6, 2015 , 10:13 pm

Arrived at USPS Facility

PHOENIX, AZ 85026

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10/7/2015 6:39 PM